IDHW v. Jane Doe

IN THE COURT OF APPEALS OF THE STATE OF IDAHO
Docket No. 48931
In the Interest of: Jane Doe I, John Doe )
I, and Jane Doe II, Children Under )
Eighteen (18) Years of Age. )
STATE OF IDAHO, DEPARTMENT OF )
HEALTH AND WELFARE, ) Filed: November 1, 2021
)
Petitioner-Respondent, ) Melanie Gagnepain, Clerk
)
v. ) THIS IS AN UNPUBLISHED
) OPINION AND SHALL NOT
JANE DOE (2021-26), ) BE CITED AS AUTHORITY
)
Respondent-Appellant. )
)
Appeal from the Magistrate Division of the District Court of the Fourth Judicial
District, State of Idaho, Elmore County. Hon. Brent Ferguson, Magistrate.
Judgment terminating parental rights, affirmed.
Rachel M. Hamilton, Elmore County Conflict Public Defender, Mountain Home,
for appellant.
Hon. Lawrence G. Wasden, Attorney General; John R. Shackelford, Deputy
Attorney General, Boise, for respondent.
________________________________________________
HUSKEY, Chief Judge
Jane Doe appeals from the magistrate court’s judgment terminating her parental rights.
Jane Doe argues the magistrate court erred in finding that she neglected her children, that it was
not impossible for her to comply with the case plan, and that termination is in the children’s best
interests. Jane Doe also argues the magistrate court erred by presiding over the case. The
magistrate court’s judgment terminating Jane Doe’s parental rights is affirmed.
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I.
FACTUAL AND PROCEDURAL BACKGROUND
Jane Doe is the mother of K.G., J.G., and I.G. Jane Doe’s spouse,1 John Doe, is the father
of J.G. and I.G. In September 2018, K.G., J.G., and I.G. were removed from the Does’ home and
placed in foster care. The magistrate court granted the Department of Health and Welfare
(Department) temporary custody of the children and subsequently held an adjudicatory hearing,
where the Does stipulated to having an unstable home environment. Approximately one month
later, the magistrate court approved case plans for Jane Doe and John Doe and authorized an
extended home visit for K.G., J.G., and I.G. The children remained in the Does’ home for
approximately eleven months, but were again removed from the home and returned to the care of
the Department in October 2019.
In August 2020, the State petitioned to terminate Jane Doe’s and John Doe’s parental
rights. In spring 2021, the magistrate court found by clear and convincing evidence that Jane Doe
neglected her children and that termination of Jane Doe’s parental rights is in the best interests of
the children. The magistrate court entered a judgment terminating Jane Doe’s parental rights to
K.G., J.G. and I.G. Jane Doe timely appeals.
II.
STANDARD OF REVIEW
On appeal from a decision terminating parental rights, this Court examines whether the
decision is supported by substantial and competent evidence, which means such evidence as a
reasonable mind might accept as adequate to support a conclusion. Doe v. Doe, 148 Idaho 243,
245-46, 220 P.3d 1062, 1064-65 (2009). The appellate court will indulge all reasonable inferences
in support of the trial court’s judgment when reviewing an order that parental rights be terminated.
Id. The Idaho Supreme Court has also said that the substantial evidence test requires a greater
quantum of evidence in cases where the trial court’s finding must be supported by clear and
convincing evidence than in cases where a mere preponderance is required. In re Doe, 143 Idaho
343, 346, 144 P.3d 597, 600 (2006). Clear and convincing evidence is generally understood to be
evidence indicating that the thing to be proved is highly probable or reasonably certain. In re Doe,
1
Jane Doe and John Doe have been in a relationship since December 2009 and hold
themselves out as husband and wife but are not legally married.
2
143 Idaho 188, 191, 141 P.3d 1057, 1060 (2006). Further, the magistrate’s decision must be
supported by objectively supportable grounds. Doe, 143 Idaho at 346, 144 P.3d at 600.
III.
On appeal, Jane Doe argues the magistrate court erred in finding that she neglected her
children, that it was not impossible for her to complete her case plan, and that termination of her
parental rights is in the children’s best interests. Jane Doe also asserts that the magistrate court
erred by presiding over the case. In response, the State argues the magistrate court’s findings that
Jane Doe neglected her children and that termination of Jane Doe’s parental rights is in the
children’s best interests are supported by substantial and competent evidence. The State further
argues Jane Doe waived any argument regarding impossibility by failing to give advance notice of
the defense prior to trial. Finally, the State argues Jane Doe waived any argument that the
magistrate court erred by presiding over the case by failing to establish an adequate record for
review.
A. Substantial and Competent Evidence Supports the Magistrate Court’s Finding of
Neglect
A parent has a fundamental liberty interest in maintaining a relationship with his or her
child. Troxel v. Granville, 530 U.S. 57, 65 (2000); Doe v. State, 137 Idaho 758, 760, 53 P.3d 341,
343 (2002). This interest is protected by the Fourteenth Amendment to the United States
Constitution. State v. Doe, 144 Idaho 839, 842, 172 P.3d 1114, 1117 (2007). Implicit in the
Termination of Parent and Child Relationship Act is the philosophy that, wherever possible, family
life should be strengthened and preserved. I.C. § 16-2001(2). Therefore, the requisites of due
process must be met when terminating the parent-child relationship. State v. Doe, 143 Idaho 383,
386, 146 P.3d 649, 652 (2006). Due process requires that the grounds for terminating a parent-
child relationship be proved by clear and convincing evidence. Id. Because a fundamental liberty
interest is at stake, the United States Supreme Court has determined that a court may terminate a
parent-child relationship only if that decision is supported by clear and convincing evidence.
Santosky v. Kramer, 455 U.S. 745, 769 (1982); see also I.C. § 16-2009; In re Doe, 146 Idaho 759,
761-62, 203 P.3d 689, 691-92 (2009); Doe, 143 Idaho at 386, 146 P.3d at 652.
Idaho Code Section 16-2005 permits a party to petition the court for termination of the
parent-child relationship when it is in the child’s best interest and any one of the following five
factors exist: (a) abandonment; (b) neglect or abuse; (c) lack of a biological relationship between
the child and a presumptive parent; (d) the parent is unable to discharge parental responsibilities
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for a prolonged period that will be injurious to the health, morals, or well-being of the child; or
(e) the parent is incarcerated and will remain incarcerated for a substantial period of time. Each
statutory ground is an independent basis for termination. Doe, 144 Idaho at 842, 172 P.3d at 1117.
The magistrate court terminated Jane Doe’s parental rights on the basis that she neglected
her children pursuant to Idaho Code § 16-2002(3)(a) and I.C. § 16-2002(3)(b). Idaho Code § 16-
2002(3)(a) defines “neglect” as any conduct included in I.C. § 16-1602(31). Section 16-
1602(31)(a) provides, in pertinent part, that a child is neglected when the child is without proper
parental care and control, or subsistence, medical or other care or control necessary for his or her
well-being because of the conduct or omission of his or her parents, guardian, or other custodian
or their neglect or refusal to provide them. Neglect also exists where the parent has failed to
comply with the court’s orders or the case plan in a Child Protection Act case and the Department
has had temporary or legal custody of the child for fifteen of the most recent twenty-two months
and reunification has not been accomplished by the last day of the fifteenth month in which the
child has been in the temporary or legal custody of the Department. I.C. § 16-2002(3)(b). Failure
to provide children with stable and safe housing may be considered in a neglect determination.
See Matter of Doe Children, 162 Idaho 69, 77-78, 394 P.3d 112, 120-21 (Ct. App. 2017).
The magistrate court found that Jane Doe neglected her children because she failed to
provide proper parental care and control for her children and failed to comply with her court-
ordered case plan. Although Jane Doe asserts the magistrate court’s conclusion that she neglected
her children is not supported by substantial and competent evidence, she does not dispute the
magistrate court’s finding that she failed to provide proper care and control for her children. If the
court grants a judgment on more than one independent basis and the appellant does not challenge
each basis for termination, then we must affirm the judgment. Idaho Dep’t of Health & Welfare
v. Doe (2017-36), 163 Idaho 274, 278, 411 P.3d 1175, 1179 (2018) (noting court need not address
parent’s argument because “magistrate court’s order contains additional, unchallenged findings of
neglect that must be affirmed”; Idaho Dep’t of Health & Welfare v. Doe (2016-09), 163 Idaho 707,
711, 418 P.3d 1216, 1220 (2016) (“When a judgment is granted on alternative grounds and one of
them is not addressed on appeal, we must affirm the judgment.”). Because Jane Doe does not
challenge the magistrate court’s finding that she neglected the children by failing to provide proper
parental care and control, we affirm the magistrate court’s finding that Jane Doe neglected her
children on those grounds.
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Next, Jane Doe recognizes that she did not complete her case plan, but argues that her
compliance with the incomplete tasks of the case plan was rendered impossible by the COVID-19
pandemic and the Department’s inaccurate statement that the Does were required to secure a three-
bedroom residence in order to reunify with the children. The State asserts that Jane Doe waived
her right to assert an impossibility defense because she did not timely raise the issue below and,
alternatively, that the magistrate court correctly found that it was not impossible for Jane Doe to
complete her case plan.
Notwithstanding the State’s argument that Jane Doe waived this issue, in this case, the
magistrate court found by substantial and competent evidence that Jane Doe was directly
responsible for non-compliance with the requirements of her case plan. The magistrate court
concluded that although the Department made Jane Doe’s search for a residence more difficult by
telling the Does they needed a three-bedroom residence, it was not impossible for Jane Doe to
secure suitable housing. The magistrate court further found that although Jane Doe eventually
complied with the housing requirement of her case plan, it was too late to successfully reunite with
her children.
As to the COVID-19 pandemic as a basis her impossibility defense, Jane Doe references
testimony from the guardian ad litem, who stated that she understood that the Does may have had
difficulty finding housing during the pandemic. Nonetheless, Jane Doe’s ability to secure housing
shortly before trial demonstrates that compliance with this task was not impossible. Moreover,
failing to find adequate housing was not the only element of the case plan that Jane Doe did not
complete. Jane Doe’s case plan required her to demonstrate her ability to provide for her children
by verifying her income and maintaining a safe and stable home free of hazards; attend to her
children’s physical, dental, developmental, and mental health needs; participate in family
preservation services (FPS) and gain demonstrable skills; identify concurrent planning options if
reunification was not possible; sign a release of all information for all facilities from which she
received mental health assessments or treatment; and arrange and attend scheduled visits with the
children and demonstrate her ability to appropriately bond with her children and meet their
emotional needs.
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In September 2018, Jane Doe lived in Mountain Home and John Doe had moved out of the
home due to a no-contact order with Jane Doe’s now adult son.2 At some point, it appears John
Doe was able to return to the residence. In November 2018, the Department approved an extended
home visit to allow K.G., J.G., and I.G. to return to the home. In October 2019, Jane Doe and John
Doe lost the residence and Jane Doe was arrested. After losing the residence and without notifying
the Department, Jane and John Doe took the children to live with a former foster parent for K.G.
The Department informed the Does that they needed to secure a three-bedroom residence for the
children, but within a week of that notification, the Department notified the Does that a two-
bedroom apartment would be acceptable.3
Jane Doe was incarcerated from October 2019 to approximately April 2020. Following
her release from custody, Jane Doe moved into a halfway house for two months and then moved
into a local motel with John Doe. Three weeks prior to trial, more than two years after the children
were taken into the Department’s custody, the Does obtained suitable housing. At trial, Jane Doe
admitted that she did not obtain housing as required by the case plan. Jane Doe testified that she
spent eight to twelve hours a day attempting to locate acceptable housing. The magistrate court
found this testimony to be exaggerated and not credible.
Not only did Jane Doe fail to secure housing, she failed to secure housing free from hazards
given the rodent and insect infestations in Doe’s home during the pendency of the case. Although
she argues the magistrate court failed to consider John Doe’s testimony regarding the presence of
bed bugs in the Does’ home, in essence, Jane Doe asks this Court to reweigh the evidence, which
we will not do. See Doe, 144 Idaho at 842, 172 P.3d at 1117. Thus, the magistrate court’s finding
that Jane Doe failed to secure safe and stable housing is supported by substantial and competent
evidence.
2
Jane Doe’s older son and daughter were originally taken into foster care, but they both
reached age eighteen during the pendency of the case and are no longer in the care of the
Department. Thus, they are not the subject of this case.
3
At trial, a Department employee testified that within the week after the Department
informed John Doe that he needed to secure a three-bedroom apartment, it corrected itself and
informed John Doe that he needed to secure only a two-bedroom apartment. The Department also
acknowledged that a two-bedroom home would have been sufficient. Notwithstanding this
testimony, the magistrate court found that the requirement for a three-bedroom apartment was in
place from October 2019 to March 2021.
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Additionally, Jane Doe did not provide any medical or financial care for the children. Jane
Doe testified that she did not pay child support while her children were in the care of the
Department because she was never asked to do so. Jane Doe provided some clothing and food
when she and John Doe voluntarily relinquished custody of the children, but the clothing was
unserviceable and the food was expired. Shortly after being placed in foster care and before the
Department formally approved the foster placement, I.G. needed medical care and the foster parent
was unable to reach Jane Doe to get the necessary approval for the care. Consequently, the foster
parent could not obtain medical care for I.G. until the Department intervened and approved the
foster parent as a placement for I.G. The foster parent had difficulty getting Jane Doe to attend
any doctor or therapy appointments or to care for the children in any significant way. Jane Doe
claimed she was unable to attend appointments because COVID-19 restrictions allowed only one
person to attend. In total, Jane Doe attended no more than two of I.G.’s appointments and she did
not attend a single appointment for K.G. or J.G. Thus, the magistrate court’s finding that Jane Doe
did not attend to her children’s physical, dental, developmental, and mental health needs is
supported by substantial and competent evidence.
With respect to the FPS task, Jane Doe did participate in FPS from January 2019 to July
2019. The FPS specialist initially assigned to the Does’ case worked with Jane Doe and John Doe
to identify safety concerns in their home, including moldy food, lice, bed bugs, and rodent
infestations. In July 2019, many of the safety concerns identified when the Does first engaged
with FPS remained in the home. The FPS specialist informed the Does that a frequent visitor to
their home was a registered sex-offender and explained to Jane Doe that it was inappropriate to
allow the individual to care for the children. Jane Doe continued to allow the individual to visit
their home and interact with the children; on one occasion, the individual was present with the
children while both Jane Doe and John Doe were absent from the home.
Jane Doe disagrees with the magistrate court’s finding that although Jane Doe attended
scheduled visits with her children, she did not interact with the children. The magistrate court
found that rather than engaging with her children, Jane Doe focused primarily on her phone and
often ended visits early. In support of her argument challenging the magistrate court’s conclusion
regarding this task in the case plan, Jane Doe argues the magistrate court discounted testimony
from Jane Doe’s adult daughter, who testified that the children enjoyed their visits with Jane Doe.
In essence, Jane Doe asks this Court to reweigh the evidence, which we will not do. See Doe, 144
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Idaho at 842, 172 P.3d at 1117. Thus, the magistrate court’s finding that Jane Doe did not arrange
and attend scheduled visits with the children and demonstrate her ability to appropriately bond
with her children and meet their emotional needs, is supported by substantial and competent
evidence.
In sum, Jane Doe failed to complete several of the tasks in her case plan, not just the task
to find safe and secure housing. As such, the magistrate court’s finding that Jane Doe neglected
her children by failing to complete the tasks in her case plan is supported by substantial and
competent evidence.
B. Substantial and Competent Evidence Supports the Magistrate Court’s Finding That
Termination Is in the Best Interests of the Children
Once a statutory ground for termination has been established, the trial court must next
determine whether it is in the best interests of the children to terminate the parent-child
relationship. In re Aragon, 120 Idaho 606, 611, 818 P.2d 310, 315 (1991). When determining
whether termination is in the children’s best interests, the trial court may consider the parent’s
history with substance abuse, the stability and permanency of the home, the unemployment of the
parent, the financial contribution of the parent to the children’s care after the children are placed
in protective custody, the improvement of the children while in foster care, the parent’s efforts to
improve his or her situation, and the parent’s continuing problems with the law. In re Doe, 159
Idaho 192, 198, 358 P.3d 77, 83 (2015); In re Doe, 156 Idaho 103, 111, 320 P.3d 1262, 1270
(2014). A finding that it is in the best interests of the children to terminate parental rights must
still be made upon objective grounds. In re Doe, 152 Idaho 953, 956-57, 277 P.3d 400, 403-04
(Ct. App. 2012).
Jane Doe challenges the magistrate court’s conclusion that termination of her parental
rights is in the children’s best interests, arguing that the magistrate court failed to follow the legal
standard requiring a presumption in favor of reunification and failed to adequately consider Jane
Doe’s progress. In support, Jane Doe argues the magistrate court did not fully analyze the effort
Jane Doe made in her case and did not adequately consider the testimony from Jane Doe’s adult
daughter that Jane Doe had positive interactions with the children. Jane Doe is again asking this
Court to reweigh the evidence, which we decline to do.
Substantial and competent evidence supports the magistrate court’s conclusion that
termination of Jane Doe’s parental rights is in the children’s best interests. At the end of the
termination trial, K.G., J.G., and I.G. had been in the Department’s care for over thirty-two months.
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When the children were first placed in foster care they were lethargic, undernourished, and
exhibited significant symptoms of neglect. K.G. would mother and care for J.G. and I.G. K.G.
was failing all of her classes in school. J.G. struggled with anger and outbursts and suffered from
nightmares multiple times a week. I.G. displayed some inappropriate behavior including drinking
from the toilet. I.G was also behind in her development in various areas and needed speech
therapy.
While in foster care, the children’s conditions improved substantially. K.G. became active
in dance and cooking classes and is now passing every class in school. J.G. completed therapy,
no longer suffers from nightmares, and his anger issues have reduced significantly. The school
gave J.G. an award for the most improved in math and reading. I.G. no longer displays
inappropriate behavior or drinks from the toilet. While I.G. continues to receive speech and
occupational therapy, she has learned multiple new skills including dressing herself, brushing her
teeth, and holding a pencil.
During trial, Jane Doe did not testify that it was in the best interests of the children to return
to her home. The magistrate court expressed concern over the lack of engagement by Jane Doe
and her difficulty focusing on her children during supervised visits. The magistrate court found
that Jane Doe was not involved in the care of her children beyond attending supervised visits.
Additionally, the magistrate court found that the children thrived while in foster care and had
developed positive, secure bonds with their foster family. The magistrate court’s factual findings
are supported by substantial and competent evidence, as is the magistrate court’s conclusion that
terminating Jane Doe’s parental rights is in the best interests of the children.
C. The Magistrate Court Did Not Err by Presiding Over the Case
Jane Doe asserts the magistrate court erred by presiding over this case because, at the time
of trial, the magistrate judges of Elmore County were represented by the Attorney General’s Office
in a civil lawsuit. Jane Doe asserts that because the Department is also represented by the Attorney
General’s Office, it was error for the magistrate court to preside over this case.
Issues not raised below are typically not considered for the first time on appeal. Matter of
Doe II, 169 Idaho 82, 491 P.3d 644, 648 (Ct. App. 2021). The minutes from an adjudicatory
hearing in March 2021 indicate that the issue of a conflict for the magistrate court was raised.
However, the minutes do not provide any detail as to what the alleged conflict was or who raised
the issue. No objection or motion for disqualification was filed at any time during the trial. In the
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absence of a motion for disqualification, this Court will not review that issue on appeal. Idaho
Dep't of Health & Welfare v. Doe, 150 Idaho 563, 568, 249 P.3d 362, 367 (2011)
However, even if Jane Doe had properly raised the issue below, her argument fails on
appeal. Denial of a motion for disqualification of a judge is reviewed under an abuse of discretion
standard. Idaho Dep't of Health & Welfare v. Doe, 161 Idaho 660, 664, 389 P.3d 946, 950 (2016).
A judge may be disqualified for cause where it is shown that the judge is biased or prejudiced for
or against any party or the case in the action. Id. However, a judge may not be disqualified for
prejudice unless it is shown that the prejudice is directed against the party and is of such nature
and character as would render it improbable that the party would receive a fair and impartial trial.
Id.Jane Doe asserts, “The appearance of the Idaho Attorney General on behalf of the
Department of Health and Welfare at the same time that the Idaho Attorney General appeared on
behalf of the magistrate presiding over this case does give rise to a question of impartiality.”
Beyond this conclusory statement, Jane Doe provides no argument or authority in support of this
claim. This Court generally does not address issues not supported by cogent argument and citation
to legal authority, even in a case terminating parental rights. Idaho Dep’t of Health & Welfare v.
Doe (2018-24), 164 Idaho 143, 147, 426 P.3d 1243, 1247 (2018). Furthermore, there is no
indication in the record that the magistrate judge was biased or prejudiced against Jane Doe. Thus,
Jane Doe has failed to show the magistrate court erred by presiding over the case.
IV.
CONCLUSION
The magistrate court’s findings that Jane Doe neglected her children and termination of
Jane Doe’s parental rights is in the best interests of the children are supported by substantial and
competent evidence. Jane Doe has failed to show the magistrate court erred by presiding over this
case. Accordingly, the magistrate court’s judgment terminating Jane Doe’s parental rights is
affirmed.
Judge LORELLO and Judge BRAILSFORD CONCUR.
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